Forget about Afghanistan and set to one side for a moment our concerns about Covid. I think we are approaching a moment in this country when the rule of law is going to be genuinely called into question. I have had this thought for some time as a consequence of the widespread efforts by Republican-controlled state legislatures to lay the groundwork for the simple overturning of the results of a presidential election. But the news out of Texas today strengthens my conviction.
Many of you will have read or heard about the Texas
antiabortion law that went into effect today, making it a criminal offense for
woman to have an abortion after six weeks of pregnancy. By choosing to remain
silent, the Supreme Court has tacitly given its imprimatur to this punitive
piece of medieval legislation. Later in this court’s current term, it will have
the opportunity to reverse Roe V Wade, an opportunity it will almost certainly
take.
I think it is at least an open question whether a majority
of Americans will docilely accept these developments. Consider first the threat
to the 2024 presidential election. Suppose, as is highly likely, a Democrat (probably
Biden) wins a huge popular majority and a substantial electoral majority, which
latter is then undone by the actions of state Republican controlled
legislatures who choose to ignore the popular vote in their states and
instead send Republican electors to the Congress. Will California and New York
and Massachusetts and Virginia and all the other Democratic states really just
accept that result? I have serious doubts. What then?
More immediately, will scores of millions of women who have
grown up in an America in which abortion is readily available agree to go back
to the time of dangerous back alley abortions?
Americans have shown themselves to be willing to submit with
little protest to exploitation and rampant economic inequality, but I am not
sure they will accept the overturning of a presidential election or the
imposition of sharia law on American women.
13 comments:
In so many ways, I think our system of government is in peril. At no time in my more than four score years have so many shown such contempt for the institutions that hold the country together. A long term problem is the imbalance of the Senate: Wyoming, with fewer people than the District of Columbia, has two seats as does California.
What can we do about it? One practical thing to do is contribute to the Democratic Legislative Campaign Committee or DLCC. This is the organization that helps fund candidates for state office, mostly state legislatures. The Democrats are typically behind in fundraising at the state and local level, as the Republicans benefit from the local business community—car dealers, realtors and the like.
Races for Congress—even the House—cost millions and that is a game for big donors, of which I am not one. I figure my small contributions to the DLCC have more impact there than they would at a higher level of government. And as recent events have shown, state legislatures are an important, if often overlooked, site of power. These are the folks who pass laws on abortion, gun control, religion is school, and as we now know, voting rights. It's important that the good guys control these bodies. Right now, the bad guys control most of them.
We've already had a massive demonstration of the breakdown of the rule of law in the case of cannabis possession, which remains a federal offense. Many people flouted the law and local jurisdictions ignore or refused to enforce it. The DEA was not going to after small-time violators but focused on the large producers.
At the time this began happening I recalled that something similar had happened at the time of Prohibition. The law just became increasingly irrelevant.
So there is precedent for it.
On the positive side, one of the supposed benefits of a federation is to provide different jurisdictions that reflect the will of the voters of that jurisdiction. In the US this is primarily the state level.
The trend would be for people to locate in a jurisdiction that is favorable to their POV and value system. This is already reflected to a degree in the US in the red and blue state dichotomy.
This is the way that the founding fathers envisioned things in order to get the US Constitution ratified, when the key constituencies were North and South.
But my concern at this time is that the rule of law is breading down to the degree of violence on both sides. The divide is now so great that the US is experiencing the onset of another civil war. I think this is real concern. The political system is becoming increasingly dysfunctional.
If you watch the video connected to this story, it will make you sick. A young African-American walking home is stopped and arrested because he looks “suspicious.” As I indicated in a prior comment, I have been the beneficiary of white privilege – had I been Black, I would now be crippled or dead.
https://www.cnn.com/2021/09/01/us/elijah-mcclain-death-officers-charged/index.html
re: the two-state solution
Not off-topic, stay with me here.
I ran across a couple of articles which I link to below showing the increasing divide over time between the Democrats and the Republicans. Maybe Americans should start thinking about a breakup.
Political Polarization in the American Public
Charts: America’s Political Divide, 1994–2017
Here's one way of partitioning:
How to split the USA into two countries: Red and Blue
Points from the above article:
-America's two political tribes have consolidated into 'red' and 'blue' nations, with seemingly irreconcilable differences.
-Perhaps the best way to stop the infighting is to go for a divorce and give the two nations a country each
-Based on the UN's partition plan for Israel/Palestine, this proposal provides territorial contiguity and sea access to both 'red' and 'blue' America
Ahmed, I don't believe siting a sure to fail, Talibanized, geographically incoherent third world state inside an indefensible first world liberal democracy will turn out well.
Also your map doesn't really provide much sea access - best harbors are blue, the Mississippi is blue, and there are no harbors that scale between San Francisco and the Columbia (the North Pacific coast is not friendly).
It's not just brown folks in far away places who will have to live in states trashed by neo-liberalism and neo-conservatism.
This is the third time 1787's whiffs have caught up with us.
I believe a plurality would accept the latter, unfortunately. Support or opposition to "legal in all or most cases" abortion seems to track the country's education divide. Further, unlike many issues, the dominant predictor of political affiliation, race, seems, in this case, to be sidelined in favor of said education divide.
Reference
I mention this to say, though the majority, reasonably, would be opposed to a reversal of Roe v Wade, it seems to be an issue that doesn't track our partisanship more broadly (at least in the public; though elected officials of course follow their party lines), and may not be, for many groups, an existential issue. Not to say it shouldn't be--access to safe abortions is a medical and moral issue par excellence. The need for them doesn't disappear just because they're made illegal.
For, the former, however... Yes, we may be looking at a crisis. I hesitate to call it a Constitutional crisis because, unless I'm mistaken, the Republicans will not have violated the Constitution by sending their chosen electors instead of the voting public's. They'll just be exploiting another of its many flaws (my apologies to those who believe it to be Divinely inspired).
What will Democratic states do? Sue (likely unsuccessfully)? Petition more heavily for the National Popular Vote Interstate Compact? There seems little they will be able to do legally if Congressional Democrats choose to miss this narrow, shrinking window of opportunity to pass voting rights legislation. After all, it seems almost certain Republicans will be in control of at least one chamber by then, and they will of course certify the results.
That leaves only acquiescence or insurrection.
Although I do not claim to be an expert on the U.S. election laws, I believe concerns that a state could select electors for President which disregarded how the people of that state had voted are overblown. Article II, Section 1 of the Constitution states:
“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.”
So, what does “in such Manner as the Legislature thereof may direct” mean? What it means is that the electors shall be selected in accordance with the legislation which the state has enacted before the election regarding how its electors will be selected. Originally, the states provided that the electors would be selected by the legislature, without any input from the state’s citizens. Since 1876, however, the legislation of every state provides that the party which has garnered the most votes is awarded all of the state’s electors.
The concern is that in those states in which the Republicans control the legislature, if the Democrats were to win the majority of the votes in a Presidential election, the Republicans would just select the Republican slate of electors to vote for the President on December 14. But such a result is highly unlikely, because there would not be sufficient time between the date of the election, on November 3, and the date on which the electors meet in the respective state capitals on December 14, to pass new legislation changing the selection of electors from the winner takes all format. Moreover, what would they change it to, the party which garnered less than the plurality takes all? But that would clearly violate the Equal Protection Clause. And there is Supreme Court precedent to support this view. In Willaims v. Rhodes, 393 U.S. 23 (1968), two parties challenged the way in which Ohio conducted its presidential elections, claiming that the state prevented them from getting on the ballot. The two parties were the Ohio American Independent Party and the Socialist Labor Party. Ohio required that in order to get on the ballot, a new party had to obtain petitions signed by 15% of the number of ballots cast in the last gubernatorial elections. Ohio claimed that the issue was not justiciable by the courts because it involved a political question which the courts were not entitled to adjudicate. The Supreme Court rejected this position and held that Ohio’s ballot restriction on new party participation was unconstitutional. Justice Black, writing for the majority, stated:
(Continued)
“The State [of Ohio] also contends that it has absolute power to put any burdens it pleases on the selection of electors *29 because of the First Section of the Second Article of the Constitution, providing that "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . ." to choose a President and Vice President. There, of course, can be no question but that this section does grant extensive power to the States to pass laws regulating the selection of electors. But the Constitution is filled with provisions that grant Congress or the States specific power to legislate in certain areas; these granted powers are always subject to the limitation that they may not be exercised in a way that violates other specific provisions of the Constitution. For example, Congress is granted broad power to "lay and collect Taxes,"2 but the taxing power, broad as it is, may not be invoked in such a way as to violate the privilege against self- incrimination. Nor can it be thought that the power to select electors could be exercised in such a way as to violate express constitutional commands that specifically bar States from passing certain kinds of laws. Clearly, the Fifteenth and Nineteenth Amendments were intended to bar the Federal Government and the States from denying the right to vote on grounds of race and sex in presidential elections. And the Twenty-fourth Amendment clearly and literally bars any State from imposing a poll tax on the right to vote "for electors for President or Vice President." Obviously we must reject the notion that Art. II, § 1, gives the States power to impose burdens on the right to vote, where such burdens are expressly prohibited in other constitutional provisions. We therefore hold that no State can pass a law regulating elections that violates the Fourteenth Amendment's command that ‘No State shall . . . deny to any person . . . the equal protection of the laws.’” (Footnotes omitted.)
If a state were to enact a law after an election occurred which changed the method of selection of electors from a winner takes all procedure to something which favored the majority party in the state legislature, even though the majority party did not garner the most votes in the election, I submit this would clearly be an unconstitutional grab for power and would violate the Equal Protection Clause.
A rejoinder, “But look at what the Supreme Court did in Bush v, Gore” would be off the mark. In Bush v. Gore, the result of the election were in dispute because of the hanging chads. The Supreme Court of Florida ordered that there should be a re-election vote in those counties in which the winner was in doubt. The U.S. Supreme Court overruled the Florida Supreme Court and rejected its ruling to hold a re-election. Although I believe the decision was wrongly decided (the Supreme Court has repeatedly held that the Supreme Court of a state is the final authority on how its own laws are to be interpreted), the decision in Bush v. Gore did not deal with how the state’s electors were to be chosen.
3 USC 1 - 7 may be relevant and is likely behind some of the new election laws in some states.
It seems that all this time we have been depending on the normative behavior of strangers.
@Another Anonymous
That seems like a sound defense against direct intervention by Republican legislatures of the kind Trump advocated for before his departure. But, for that reason, it makes the laws already passed by a number of state legislatures seem all the more pernicious.
If, as the Georgia legislature seems prepared to do, states selectively discard or alter county-level results, it seems we've arrived at the same results by a slightly more circuitous route. Is there any defense against that?
Sparks,
Even with the current conservative composition of the Supreme Court, I believe some of the voting restrictions included in the recent Georgia legislation, like prohibiting providing water to people on line waiting to vote, and the restriction on sending absentee ballots to registered voters, will not survive Supreme Court review. I expect each of these restrictions to be challenged in court, and not all will survive. Time wil tell.
RE: Tom Hickey's post
Tom, I think the government is already dysfunctional. With a fascist republican party, politics is all or nothing.
By 2008, the election of a Obama produced the tactic of making Obama's administration fail and McConnell's corollary strategy of ensuring nothing that republicans oppose will pass. That is just scratching the surface of malfunction. More Importantly now is the de-legitimation of government because it has both failed to meet to needs of a significant number of people at the same time it is blamed as the source of all problems.
Insurrections don't happen in functioning states and the rise of a fascist parties don't happen in states seen as legitimate. The rule of law is breaking down almost daily: DeSantis ignores Florida court rulings and withholds money from school boards, for example. But the most concerning thing I see is the failure of police to have a presence at demonstrations to prevent violence.
The era of non-violent demonstrations is over, and I expect, if the electoral scenario Dr. Wolff discusses occurs (and I think it will), the level of violence will increase dramatically as demonstrations against legislatures 'stealing the vote' take place in state capitals.
The Texas statute does not criminalize. It provides a civil cause of action against anyone who performs or aids and abets an abortion, expressly excluding the woman as a possible defendant, and allows anyone in the state to be the plaintiff. The latter is the procedural problem the Supreme Court is using as an excuse not to act.
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